Doedt v. Wiswall

15 How. Pr. 128

• Court: New York Supreme Court
• Decided: June 15, 1857
• Status: Published

Opinion

Gould, Justice.

This action is intended for an action on contract, against the proprietors of a ferry franchise; the claim being meant for one that such ferry proprietors agreed for hire, to carry Charles Doedt, “ safely,” across the river, (including in “safely ” the care and skill required for safe carriage;) and the breach of the contract consisted in stowing and managing the ferry boat, “ with want of skill and care and with negligence,” whereby the ferry boat was swamped, and Charles Doedt was drowned ; ending with a claim, that his life was, to his estate, of the pecuniary value of $5,000 ; and founding the right of action on "the statutes of 1847 and 1849.

I have said the action, is intended to be on contract; because the allegations of the cause of action are in no form whatever; and “ a common understanding,” (without legal information,) would be very much puzzled to give their meaning. Their lack of clearness and precision is carried to the very limit of what is sometimes said to be the effect, (as well as the intention,) of the Code, viz: that parties come into court and tell their own story, and the court is to apply the proper relief; (a state of things making the duties of the court anything but light or agreeable.) Still, as I am unable to see any reason for alleging a contract, unless the action were to be founded on it; and as a party has the absolute right to state just such a cause of action as he pleases, provided he states what is a cause of action, I consider this action (as laid) sounding in contract.

It thus varies entirely from the actions heretofore commenced by the same parties, against Ebenezer Wiswall, (now deceased,) in his lifetime. The complaints in those actions professed to he for torts—were so on their face ;—and were without any shadow of a suggestion of the existence of any contract in the premises. So that, (granting the circumstances to be such as would allow a party to waive the tort, and sue on the contract,) in those causes the tort was not waived; but it, and not the contract, was sued on. Mr. Justice Harris decided, on a motion to revive those suits against Wiswall’s executors, that the cause of action was for an actual tort, and did not survive ; and denied the motion. On appeal to this court, at' general term, that decision was unanimously affirmed; and in that affirmance I concurred. There was, however, no opinion given by the court; and so far as the opinion of that learned judge (as published) goes beyond the very point decided in those suits, the general term cannot be said to have given either decision or opinion. I therefore treat the case before me as one that has not been directly heard, or passed upon; at either a general or special term; giving to it the most careful consideration I can, and not doubting that a free expression of opinion is the surest way of attaining, (before an ultimate tribunal,) a satisfactory, as well as a final decison.

It thus becomes necessary for me to examine into the effect, (if there be any,) of this change in the allegation of the cause of action, and to see whether, as thus alleged, there he a cause of action. The determination of these two points will carry with it the remaining ground of the demurrer; 'which is that the action does not survive against the representatives of the personal estate of E. Wiswall, deceased. And it is well, in this connection, to note that executors, &c., (though called personal representatives,) represent not the person, but the personal estate. I treat as of no moment the plaintiff’s averment that, in E. Wiswall’s lifetime, she commenced against him “ an action for the same cause of action,” &c., as it plainly means “ for the same occurrencewithout saying that the complaint, in that case, stated the same ground for the-suit that is-stated in this case.

To begin at the foundation of the claim, do the facts stated, constitute a cause of action on contract f At common law, the general rule certainly is, that where the cause of action is a tort, or arises ex delicto, and must he declared upon as a tort, the executor is not liable. And the reason therefor is two fold: 1st. The testator’s property (which the executor represents) was not augmented by the wrong, (meaning not merely by the tortious act itself, but by the transaction, in the course of which the tortious act was done;) and 2d, the plea must be not guilty; so, on the face of the record the charge is of a private criminal injury or wrong; and such, as well as public crimes, are buried with the offender; and the law will not allow the trial of an issue as to the guilt of a deceased person. (Toller’s Executors, 861-2, 460; Cowper, 875.)

But, at common law, where the estate of the party doing or omitting the act complained of, was increased by the transaction, during which the default or neglect occurred, (as where the transaction was in the line of his business, from which he received a profit to his estate,) the representative of that estate—the executor—was always held liable to the party injured, in an action on contract, whether there were, in fact, an express contract, or only the implied contract which the law supplies where the facts warrant it. Thus Sir Thomas Raymond, (p. 71, 72,) in a case held not to lie, (because it was in form tort, and the plea not guilty,) cites Savill's Rep. 40; which case is cited and approved in Cowper, 376, thus: Manwood, Justice, said, “in every case where any price or value, is set upon the thing in which the offence is committed, if the defendant dies, his executor shall be chargeable; but where the action is for damages only, in satisfaction of the injury done, then his executor shall not be liable.” That was a suit for cutting down and carrying away trees by testator, and the executor was held liable for the value of the trees, not for damages for the trespass. The very case in Cowper, (Hambly agt. Trott, p. 371, &c.,)—which is considered by the-defendants as emboying the whole strength of the law in their favor—was in form, trover, and the plea not guilty. And though there it was held, that the executor was not liable, yet (at p. 377) Lord Mansfield gives the unanimous opinion of the court thus: “ The form of the plea is decisive, viz: the testator was not guilty; and the issue is to try the guilt of the testator. And no mischief is done," (by deciding that suit against the plaintiffs,) “ for so far as the cause of action does not arise ex delicio or ex maleficio of the testator, but is founded on a duty which the testator owes the plaintiff upon principles of civil obligation, another form of action may be brought, as an action for money had and received,” (which is on a contract implied by law, from the duty or obligation, and not on an express contract.) He thus says, expressly, that though the facts showed an actual tort, the party injured, (in a case where there was arising out of the same facts, a legal duty, from which the law implied a contract,) might waive the tort, and sue on the contract, and the executor would then be liable.

These principles go further than the case of negligence in a common carrier, for they imply a contract out of a mere duty; whereas, it has always been held, that a common carrier, by receiving goods or persons to carry for hire, necessarily agrees to carry, &c., with proper care and skill. There is a very well considered case in (2 New Rep. 395, &c., Powell agt. Layton,) where the declaration was for loss of goods by negligence, with no word in the pleading of any contract, and the defendant pleaded in abatement, the non-joinder of his two partners in the carrying trade; and (though pleas in abatement are never favored) the plea was sustained, the court holding that the action was founded on contract, and of necessity, that the negligence was merely introduced to show the breach of the contract. (See 2 New Rep. 367 to 373, and also 5 Esp. Cas. 32, Day's edition, note 1, third paragraph)

That this ground of liability extends to injuries to the person of a passenger, see an express decision in an action of assumpsit for such injuries, (2 Campb. 79 to 81,) where it is said by Sir J. Mansfield, Ch. J., that the carrier “ did not warrant the safety of the passengers. His undertaking as to them, went no further than this; that as far as human care and foresight could go, he would provide for their safe conveyance.” And (Chitty's Pleadings, 2d vol. p. 362,) gives the proper form for declaring in assumpsit, for such injuries.

But common law decisions will be found to come still nearer to the case before us. (Chitty's Pleadings, vol. 1, p. 102,) says, “ an action of assumpsit may be maintained against the executor of an attorney for unskilfulness or carelessness in the conduct of a cause, or other professional business in which the testator was employed.” And for this, he cites the very case decided (in a suit for pecuniary loss caused by the attorney’s negligence,) in 3 Starkie Rep. 154; S. C., 3 Eng. Com. L. Rep. 634.

Before attempting to apply that decision to this case, it is necessary to inquire how far the circumstance of the killing affects the position of the parties ; and this involves the consideration of the statutes of 1847 and 1849. (Laws 1847,575, 576; Laws 1849, 388, 389.) For greater accuracy, I quote: “ Whenever the-death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, (if death had not ensued,) have entitled the party injured to maintain an action, and recover damages in respect thereof, then the person, &c., who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death.” And by the second section, this action is given to the personal representatives of the deceased person, the amount recovered to be distributed to the next of kin; and this section adds, “ the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the next of kin.”

It should further be observed, that the first section gives the action, “ although the death shall have been caused under such circumstances as amount, in law, to felony.” Thus showing the intention to compensate the next of kin, (through the representative of the personal estate,) for the pecuniary loss, whether the killing act be a crime or a chance; a wilful and forcible attack, or an act positively careless; or a mere neglect to use such care and skill as (in the circumstances of a particular case,) the law says it is the duty cf the party to use.

I would also observe on this first section, that while it uses the words, (that if the manner or nature of the injury be such that the party injured, if not killed, could maintain,) “ an action and recover damages in respect thereof;” the subsequent words constitute a positive enactment, making the actor liable to “ an action for damages,” (not to the person who was personally injured, but) to some one else. Mow the phrase “ an action and recover damages in respect thereof,” gives no intimation as to what shall be the legally stated “ cause of action;” and the party injured, (if not killed,) as truly “ recovers damages in respect thereof,” when (in a case legally proper,) he waives the tort and sues on the contract, as when his suit is technically for the tort. Besides, even were the act, &c., such that the party injured (if not killed,) would be compelled to found his complaint on tort, the section in giving “ an action for damages,” (to some one else,) does not, in terms, or necessarily, give to that some one else the action—the same action —(either in form or ground therefor, as the second section proves,) which the living, injured party would have had ; but “ an action,”—any action to which the rules of the law, as applied to the facts, entitle the party suing. And, as just noted, the second section proves this to be the true construction of the first; for it explains the word “ damages,” to mean just what it does in an action on a note, (a pecuniary compensation, and not what is understood by “ damages,” in an action for assault and battery,) and says the damages are to be such as are fair, “ with reference to the pecuniary injury resulting from such death ;” and, not stopping there, it adds, it must be for such pecuniary injury, “ to the next of kin,” (the takers of the personal estate, who assuredly have suffered no personal wrong, have sustained no violence, felt no assault and battery.) The section puts no estimate on, gives no place for any element of wilfulness, any circumstances of outrage, any degree of suffering, any matter of mere aggravation. It is thus within the very scope of Cowper, 372: “ An action founded merely on an injury done to the person, where no property is in question, dies with the person, as in ,assault and battery, and the like. But where property is concerned, the action remains, notwithstanding the death,” of the party liable. For, however unpleasantly it may strike us, these statutes have created (in the next of kin) a property interest in the death of the person killed, accruing like dower, at and by the death; the value of which, and no more, (as in assumpsit on the quantum valebat,) is the rule of “ damages.” It is, in effect, a sort of statute life insurance against loss from specified risks; the interest in,the amount assured, accruing and becoming vested, by the fact of the death, in the party to whom it is payable. I can hardly conceive a closer application of the principle of the oldest reported case, as cited from Justice Manwood, above. By force of the statute, a “ price or value is set upon the thing in which the offence is committed.” And here may also be applied Lord Mamsfield’s remark, (Cowper, 377,) that “ so far as the action is founded in a duty which the testator owes the plaintiff,” (the obligation to pay the pecuniary loss he has caused, not to the party killed, but to the plaintiff or those she represents,) “upon principles of civil obligation another form of action may be brought,” which would survive against the executor of the party liable.

As a common carrier of passengers then, on the principles, and by the cases above cited, Ebenezer Wiswall, deceased, was, in the circumstances of this case, liable to a party injured (and not killed) in an action on contract; and that action would survive against his executors. By the statutes cited, an action for the same occurrence being giyen to the executors of the party killed, they, were the statutes silent on the point, must be at liberty to allege the same cause of action that the party injured (if not killed) could have alleged; the death certainly not changing the cause of action from contract to tort. But were this doubtful, or even ruled to the contrary, the second section, by defining the claim of the executor to be founded on the loss of property, brings the case clearly within the rules allowing a waiver of the tort, and a suit on the contract.

To this view of the case I conceive the statute, cited by both parties, (2 Rev. St. 2d part, 8th chap. 3d title, 2d section,) can have no application. The person killed is not the plaintiff. The action itself never did and never could belong to the party killed. It is a statute right of property, for which the statute gives an action; and the whole matter was utterly unknown, it had no existence, when this section of the Revised Statutes was passed, twenty years before that of 1849. But had it been in existence, I do not see how the words “ nor to actions on the case for injuries to the person,” can have any other fair construction than this—actions, which being on the case, (a technical phrase,) are for "a tort, and require the plea of not guilty; certainly not touching an action on contract, or one for pecuniary loss.

I hold this action to be properly on contract, and to survive’ against Ebenezer Wiswall’s executors.

The question as to the propriety of joining with them the surviving partners of Ebenezer Wiswall, is not now before me. Therefore, without any intimation on that point, judgment is ordered for plaintiff on the demurrer, with leave to the defendants demurring, to answer in thirty days, on paying costs, to be adjusted by the clerk.

Albany General Term, September, 1857.

Ira Harris, Geo. Gould, Deodatus Wright, Justices.

This decision affirmed. D. Wright, giving the opinion. Harris, J., dissenting.